Patrick Morrisey, Esq. Attorney General S. L. Evans, Esq.
Assistant Attorney General Charleston, West Virginia Counsel
for the Respondent The Department of Health and Human
Resources

SYLLABUS
BY THE COURT

1.
"'When this Court reviews challenges to the findings
and conclusions of the circuit court, a two-prong deferential
standard of review is applied. We review the final order and
the ultimate disposition under an abuse of discretion
standard, and we review the circuit court's underlying
factual findings under a clearly erroneous standard.'
Syl., McCormick v. Allstate Ins. Co.,197 W.Va. 415,
475 S.E.2d 507 (1996)." Syl. Pt. 1, In re S.W.,
236 W.Va. 309, 779 S.E.2d 577 (2015).

2.
"Where the issue on an appeal from the circuit court is
clearly a question of law or involving an interpretation of a
statute, we apply a de novo standard of
review." Syl. Pt. 1, Chrystal R.M. v. Charlie
A.L.,194 W.Va. 138, 459 S.E.2d 415 (1995).

3. An
indigent litigant is not entitled to court-appointed counsel
in a domestic relations proceeding. Further, upon the filing
of an abuse and neglect petition, which results in
appointment of counsel for an indigent litigant, once the
abuse and neglect proceeding is dismissed, the litigant is
not entitled to court-appointed counsel in subsequent
domestic relations proceedings.

4.
Pursuant to Rule 47 of the West Virginia Rules of Practice
and Procedure for Family Court, courts shall not routinely
assign guardians ad litem for children in a domestic
relations case. Where, however, the court is presented with
substantial allegations of domestic abuse, serious
allegations of abuse and neglect, serious issues relating to
the child's health and safety, or allegations involving
disproving a child's paternity, a guardian ad litem shall
be appointed by the court for the child(ren).

5.
Under Rule 47 of the West Virginia Rules of Practice and
Procedure for Family Court, the order appointing a guardian
ad litem shall specify the terms of the appointment,
including the guardian's role, duties and scope of
authority, the issues to be investigated, as well as the
specific reasons for the appointment and the expectations of
the court for the guardian ad litem's report, including
the date by which the written report is due. The order
appointing a guardian ad litem shall also require the parties
to fully cooperate with the guardian ad litem in terms of the
investigation.

6.
Before a guardian ad litem may seek payment by this Court, a
proper order that comports with Rule 47 of the West Virginia
Rules of Practice and Procedure for Family Court must be
entered and there must be compliance with the requirements of
West Virginia Trial Court Rule 21.04 and 21.05.

WORKMAN, JUSTICE.

In this
appeal, the Court is asked to determine whether a parent, who
had court-appointed counsel in an abuse and neglect
proceeding, is entitled to representation by court-appointed
counsel once the abuse and neglect proceeding is dismissed
and further action is brought in a domestic relations case.
The petitioner father, C.D., [1] appeals the Circuit Court of
Mercer County's order, entered January 18, 2017,
determining that once the abuse and neglect proceeding was
dismissed, the petitioner was no longer entitled to
court-appointed counsel to resolve a custody issue within the
confines of a subsequent domestic relations case. Upon review
of the parties' briefs[2] and arguments, the appendix record, and
all other matters submitted before the Court, we affirm the
circuit court's ruling on the court-appointed counsel
issue. But we reverse the circuit court's decision to
continue the appointment of the guardian ad litem for the
children in the domestic relations proceeding.

I.
Facts and Procedural History

The
petitioner and A.D., [3] filed for divorce in the Family Court of
Mercer County. In 2012, as part of the domestic relations
proceeding, the parents entered into a "Mediated
Parenting Plan" concerning their two children, Z.D. and
D.D.[4]
At the time this plan was adopted by the family court, the
petitioner was pro se.

On
April 26, 2016, the DHHR filed an abuse and neglect petition
against both parents, alleging that the children were
neglected as a result of their excessive absenteeism from
school. The filing of the abuse and neglect proceeding by the
DHHR caused the matter to be transferred to the jurisdiction
of the circuit court.[5] The circuit court appointed a guardian ad
litem for the children and counsel for each of the parents.

On July
18, 2016, the circuit court conducted an adjudicatory hearing
and by order entered August 2, 2016, the circuit court
accepted the DHHR's recommendation that the parents be
placed on a preadjudicatory improvement period. On December
12, 2016, the circuit court held another hearing on the
DHHR's motion to dismiss[6] the case as the parents had
successfully completed the preadjudicatory improvement period
by resolving the truancy concerns involving their children.
According to the transcript of that hearing, the circuit
court noted at the beginning of the hearing that the mother
had just filed a motion for custody of the
children.[7] The circuit court indicated that it was
granting DHHR's motion to dismiss and would retain
jurisdiction over the domestic relations case. The circuit
court, however, stated that it was giving the parents one
shot to resolve the mother's motion for custody at a
Multi-Disciplinary Treatment Team ("MDT") meeting
"on the State's nickel. I'm going to dismiss it
[referring to the abuse and neglect case] but with one more
MDT on the State's nickel and the purpose of that is to
discuss this Motion for Custody." After the MDT meeting,
the circuit court informed the petitioner and the mother that
they were no longer entitled to court-appointed counsel as
the abuse and neglect case was over.[8]

In a
January 18, 2017, order, the circuit court memorialized what
occurred at the December 12, 2016, hearing. Specifically, the
circuit court found that a motion for custody had been filed;
that the DHHR requested that the matter be dismissed; that
after one more MDT meeting, scheduled for January 5, 2017,
the circuit court was dismissing and removing the abuse and
neglect case from its docket; that thereafter the case was a
domestic case; that the petitioner and the mother were
"not entitled to counsel dealing with a custody
issue[;]" and that the guardian ad litem for the infant
children "will bill under the Supreme Court guidelines
for domestic cases." It is from this order that the
petitioner appeals.

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